Senseless Secrecy

An editorial in yesterday’s New York Times criticized the current administration’s attempts to reclassify decades old information, such as the number of missiles and bombers in the United States’ arsenal during the Nixon era. The editorial notes that this administration seems to have taken classification to new and frivolous levels, and cites the National Security Archive’s postings on “dubious secrets”, which lists dozens of cases in which the government classified information that no reasonable person would find worthy of secrecy. (My favorite example is the decision by a 1999 CIA reviewer to classify a Ford-era CIA memo discussing plans to sabotage the “annual courier flight of the Government of the North Pole” by its “Prime Minister and Chief Courier S. Claus”).

Like the classification process, the executive may also have misused the state secrets privilege. (That’s the same privilege that the government is asserting as grounds for dismissal of cases challenging the NSA’s warrantless wiretapping program). That privilege was first formally recognized by the Supreme Court in United States v. Reynolds, where the government asserted the privilege to prevent disclosure of the Air Force’s accident investigation report on the crash of a B-29 aircraft in a tort suit brought by widows of three civilians on board. The government argued that the report contained information about secret Air Force missions, and the Court agreed that the report should be withheld from discovery to protect national security. When the report was finally declassified and publicly disclosed, however, it did not appear to contain any information relevant to national security. (For more details on the Reynolds case, see “Who Will Guard the Guardians? Revisiting the State Secrets Privilege of United States v. Reynolds,” published in Federal Contracts Report, vol. 80, no. 11, September 30, 2003)

These examples make me wonder whether government officials who erroneously classify information should be subject to some type of penalty. Not only do these sorts of misclassifications keep information about the workings of the government from the public, they may also jeopardize national security by making judges skeptical of the executive’s judgment and thus less likely to defer in those cases in which secrecy is actually justified.

The National Security Archive has uncovered a secret agreement between the National Archives and various military and intelligence agencies to conceal the reclassification of thousands of pages of declassified documents, some of which had been declassified for nearly 50 years:

The National Archives and Records Administration secretly agreed to a covert effort, led by the Air Force, the CIA, and other still-hidden intelligence entities, to remove open-shelf archival records and reclassify them while disguising the results so that researchers would not complain, according to a previously secret Memorandum of Understanding (MOU). The secret agreement, made between the Air Force and the National Archives, was declassified pursuant to a Freedom of Information Act request by the National Security Archive and posted on the NARA website yesterday.

The heavily excised MOU, signed by assistant archivist Michael Kurtz in March 2002, reveals that the National Archives agreed that the existence of the program was to be kept secret as long as possible: “it is in the interests of both [excised] and the National Archives and Records Administration (NARA) to avoid the attention and researcher complaints that may arise from removing material that has already been publicly available,” states the MOU. NARA agreed that the withdrawal sheets indicating the removal of documents would conceal any reference to the program and “any reason for the withholding of documents.”

NARA also agreed to conceal the identities of the intelligence personnel who were reviewing and removing the documents, according to the agreement, including from NARA’s own staff. “NARA will not disclose the true reason for the presence of [deleted agency] AFDO [deleted] personnel at the Archives, to include disclosure to persons within NARA who do not have a validated need-to-know.”

It’s not clear what kinds of documents have been reclassified, though the censored portions of the MOU provide some tantalizing clues:

According to National Security Archive historian William Burr, concern over references in some declassified records to various aerial reconnaissance systems that Air Force has used over the years, such as the U-2 and the earlier GENETRIX balloon program, may have triggered the reclassification project. Censored sections of the MOU, he noted, could refer to operations of the National Security Agency. If the NSA was involved, then perhaps the re-review referenced in the MOU focused on specialized intelligence activities.

On the government side, the secret agreement comes as no surprise: the Bush administration’s obsession with secrecy has been well-documented. But as Michael Froomkin notes — and a tip of the hat to him for the story — the willingness of the National Archives to do the government’s bidding is particularly unfortunate, given the important role librarians have played in combating the Bush administration’s repressive policies concerning information gathering and control.

[The original posting at Opinio Juris has several interesting links I’ve left out.]